Citation Nr: 1302079
Decision Date: 01/18/13 Archive Date: 01/23/13
DOCKET NO. 10-27 295A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUES
1. Entitlement to service connection for a cervical spine disability (claimed as an upper back condition).
2. Entitlement to service connection for a right knee disability.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Michael Wilson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1979 to September 1983.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in relevant part, denied the benefits sought on appeal.
While the Veteran also initially initiated appeals with respect to the denial of his claims for service connection for a lower back condition, bilateral hearing loss, and tinnitus in his August 2009 notice of disagreement, his bilateral hearing loss and tinnitus claims were subsequently granted in September 2011 rating decision, and his lower back condition claim was granted in an August 2012 rating decision. As these decisions constituted a full grant of the benefits sought on appeal with respect to those claims, those issues are not on appeal before the Board.
In a July 2009 statement, the Veteran indicated that he would like to be scheduled for a hearing before an RO Decision Review Officer (DRO). In a subsequent May 2011 statement, he indicated that he wished to withdraw his DRO hearing request.
The Veteran testified at a Board hearing before the undersigned in September 2012. A transcript of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.
The Veteran seeks entitlement to service connection for a low back disability and a right knee disability. He contends that he incurred these disabilities as a result of an in-service incident where he hit a ship bulkhead while hanging on to a cable while transferring supplies from one ship to another.
At the outset, the Board notes that the Veteran reported during his September 2012 Board hearing that he was receiving disability benefits administered by the Social Security Administration (SSA). He specifically indicated that his SSA benefits were based on his claimed cervical spine and right knee disabilities. To date, however, a copy of the Veteran's SSA records has not been associated with the claims file. As such, this case must be remanded to obtain a complete copy of his SSA records. See 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (2010).
Similarly, after a review of the claims file, it appears that the Veteran is also in receipt of disability insurance or other disability benefits administered by the California Employment Development Department. It also appears, however, that a complete copy of his disability benefits records has not been obtained from that state agency. Thus, on remand, these records should also be obtained. See 38 C.F.R. § 3.159(c)(1) (2012).
A review of the Veteran's service treatment records (STRs) reveals that during a March 1982 clinical consultation, he reported having experienced back pain for two years as a result of having been slammed into a bulkhead. He was additionally noted to have had numerous recurrent injuries. The consultation report did not reveal, however, any complaints specifically regarding his cervical spine or right knee. During a June 1982 clinical consultation, he complained, inter alia, of having pain in his left upper back.
A review of his remaining STRs did not reveal any further complaints of upper back pain or of any right knee symptomatology. The Veteran testified during his September 2012 Board hearing, however, that he did seek treatment for his right knee during service. He additionally testified that he has experienced a continuity of cervical spine and right knee symptomatology since his separation from service.
The first post-service treatment of record for his cervical spine is found in private treatment records from Kaiser Permanente, revealing that he complained of having pain in his neck during a June 2008 hospital admission. He reported having pain in his neck for one week. A June 2008 MRI report revealed an impression of small posterior disc osteophyte complexes at the C3-4 through C5-6 levels, a minimally flattened ventral spinal cord with borderline spinal canal stenosis and borderline neural foraminal narrowing, greatest at the C3-4 level on the right.
The Veteran was afforded a VA contract examination through QTC Medical Services in April 2009. The examiner noted that diagnostic studies showed spondylosis at C4-7, and moderate disc degeneration from C3-4 to C6-7. The examiner then diagnosed an upper back strain. The examiner did not, however, provide an opinion regarding the etiology of any cervical spine disability. This opinion, therefore, is inadequate with respect to the determinative issue of the etiology of the Veteran's claimed cervical spine disability. See 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be provided). The Board finds, therefore, that on remand, the Veteran must be afforded a new and contemporaneous VA examination of his cervical spine to determine the nature and etiology of all diagnosed cervical spine disabilities.
To this point, the Veteran has not been afforded a VA examination to determine the nature and etiology of any claimed right knee disability. The Veteran, however, is competent to report having injured his knee during service and he is competent to report suffering current right knee symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (defining competent testimony as that which the witness has actually observed and is within the realm of his personal knowledge through use of his senses). Therefore, pursuant to the duty to assist, the Board finds that the Veteran must be afforded a VA examination to determine the nature and etiology of his claimed right knee disability. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case).
In remanding these claims, the Board notes that the Veteran is competent to report an onset of a cervical spine disability and a right knee disability during service and he is competent to report a continuity of symptomatology of these disabilities since his separation from active service. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Thus, the Board is primarily concerned with whether there is a continuity of symptoms since the incurrence of a claimed injury or disease in service, rather than with a continuity of treatment. See 38 C.F.R. § 3.303(b) (2012). Therefore, on remand, the VA examiner should recognize this lay evidence as potentially competent to support the presence of disability even where it is not fully corroborated by contemporaneous medical evidence, and must comment on this reported continuity of symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
Finally, the Board notes that the Veteran provided a release form to request private treatment records on his behalf from UCLA Medical Center. While an initial request was made for his records, a response received from UCLA Medical Center indicated that the request form could not be predated to a date occurring in the future. It appears that no further attempts were made to obtain these records and that the Veteran was not advised of the outcome of attempts to obtain these records. See 38 C.F.R. § 3.159 (c) and (e) (2012). Accordingly, on remand all reasonable efforts to obtain these records should be made. Additionally, any additional records from Kaiser Permanente, dated since January 2009, should be requested on the Veteran's behalf. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).
Accordingly, the case is REMANDED for the following action:
1. Obtain a complete copy of all documents and/or evidentiary material pertaining to the Veteran's application(s) for SSA disability benefits and his application for disability benefits administered by the California Employment Development Department. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012).
2. After obtaining any necessary release forms, obtain a complete copy of the Veteran's private treatment records from UCLA Medical Center, his private treatment records from Kaiser Permanente, dated since January 2009, and treatment records from any other identified private healthcare provider. All reasonable attempts should be made to obtain such records. If any requested records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012).
3. Thereafter, schedule the Veteran for a VA orthopedic examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted.
The examiner should diagnose and describe all cervical spine disabilities, (to include prior diagnosed cervical spine spondylosis, degenerative disc disease, spinal canal or foraminal stenosis, and upper back strain), and all right knee disabilities found to be present.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disability had its clinical onset during active service or is related to any in-service disease, event, or injury.
The examiner should additionally provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability had its clinical onset during active service or is related to any in-service disease, event, or injury.
The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In providing this report, the examiner should specifically address the Veteran's contention that he incurred his claimed disabilities as a result of smashing into a bulkhead on his ship during service, and his report of a continuity of cervical spine and right knee symptomatology since his separation from service.
4. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998).
5. Finally, readjudicate the Veteran's service connection claims on appeal. If either claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2012).